On January 24, 2007, Senator Leahy introduced, S.378, the Court Security Improvement Act of 2007,and the bill was referred to the Senate Judiciary Committee. On March 29, the bill, as amended, was favorably reported out the committee with a written report and placed on the Senate Legislative Calendar.

The recent violence against judges and their families, including the murders of United States District Judge Joan Lefkow’s mother and husband in Chicago and the murders of Superior Court Judge Rowland W. Barnes, a court reporter, and a deputy in Atlanta, has heightened concerns about judicial security. The Senate Judiciary Committee has held two hearings on the matter: “Protecting the Judiciary at Home and in the Courthouse,” on May 18, 2005 (109th Congress), with Judge Lefkow, other federal judges, and representatives from the U.S. Marshal Service (USMS); and “Judicial Security and Independence” on February 14, 2007, with U.S. Supreme Court Anthony M. Kennedy. Both hearings also addressed the possible threat that irresponsible, anti-judiciary rhetoric can pose to the safety of judges, their families, and judicial independence.

S.378 would improve court security by enhancing measures that protect judicial personnel, witnesses, and family members of judicial personnel; increasing funding for judicial security at the federal and state levels; and strengthening relevant criminal penalties. The bill would also reauthorize the Office of Government Ethics until 2011 and adjust the number of judgeships on the District of Columbia and Ninth Circuits.

Major Provisions

Title I — Judicial Security Improvements and Funding

Sec.101: S.378 would amend the United States Code (USC) to direct the USMS to consult “on a continuing basis” with the Judicial Conference (JC) regarding judicial security, including staffing levels, priorities, and resources. The term “judicial security” encompasses building security, personal security of judicial officers, assessment of threats against judicial officers, and the protection of all other judicial personnel. Though the JC’s views are to be considered, the USMS retains “final authority regarding security requirements.”

Sec.102: To protect judges’ families, S.378 would amend the Ethics in Government Act of 1978 to authorize the JC to permit redaction of a judge’s family member’s name on statutorily required, financial disclosure reports.

Sec.103:S.378 would extend until 2009 the JC’s power to grant redactions in financial disclosure reports, where it is determined that information’s release could endanger the judge or his/her family. Additional information, however, about redacted content would be required, including the nature or type of information redacted, and what steps are in place to ensure that litigants can still determine potential conflicts of interests.

Sec.104:S.378 would amend the Internal Revenue Code to authorize the USMS to provide security for the Tax Court, including judges, court officers, witnesses, and others, where criminal intimidation impedes the functioning of the judicial process or any other official proceeding.

Sec.105:S.378 would authorize $20 million for each Fiscal Year from 2007 to 2011 for USMS for judicial security. Specifically, the monies would be used for (1) hiring entry-level deputy marshals to provide general security, (2) hiring senior-level deputy marshals to investigate threats to the judiciary and provide protective details to judges and assistant U.S. Attorneys, and (3) the Office of Protective Intelligence to hire senior-level deputy marshals and program analysts and to secure computer systems.

Title II — Criminal Law Enhancements to Protect Judges, Family Members, and Witnesses

Sec.201: S.378 would amend the USC to make it a criminal offense to knowingly file, attempt to file, or conspire to file a false lien or encumbrance against the real or personal property of a federal employee in retaliation of their performance of official duties. The definition of “knowingly” includes “knowing or having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent statement or representation.” The offense would provide a maximum penalty of a fine and/or 10 years imprisonment.

Section 202: S.378 would also amend the USC to make it a criminal offense to knowingly make restricted, personal information about a covered official or his/her family publicly available with: (1) the intent to threaten, intimidate, or incite violence against that official or official’s family; or (2) the intent and knowledge that the information will be used to threaten or facilitate violence against or intimidate that official or official’s family. The offense would provide a maximum penalty of a fine and/or five years imprisonment.

The bill also includes key definitions, including a definition for “restricted personal information.” Restricted personal information would include the social security number, home address, home phone number, cell phone number, and personal email of a covered official or official’s family member(s).

Section 203: S.378 would expand the USC offense of knowingly carrying or causing to be present a firearm in a federal court facility, or attempting to do so, to include other dangerous weapons in addition to firearms.

Section 204: S.378 would amend the USC to clarify that a prosecution for retaliation against a witness may be brought in the district where the official proceeding intended to be affected was located, regardless of whether the original action was pending, about to be instituted, or was completed. Alternatively, the prosecution could be brought in the district where the conduct constituting the alleged offense occurred.

Section 205: S.378 would also increase statutory maximums for tampering with a witness, victim, or an informant.

Section 206: S.378 would increase statutory maximums for retaliating against a witness, victim, or an informant.

Section 207: S.378 would increase statutory maximums for manslaughter from 10 to 20 years for voluntary manslaughter and from 6 to 10 years for involuntary manslaughter.

Title III — Protecting State and Local Judges and Related Grant Programs

Section 301: S.378 would amend the Violent Crime Control and Law Enforcement Act of 1994 to expand the permissible uses of Community-Based Justice Grants to state, Indian tribal, or local governments to include the creation and expansion of witness protection programs. The bill would also authorize $20 million annually through 2010 for this purpose.

Section 302: S.378 would make state and local courts eligible for correctional options grants, provided that the recipient considers the needs of the relevant judicial branch, consults with the chief judicial officer, and consults with the chief law enforcement officer responsible for judicial security. The bill would also make state and local courts eligible for armored vest grants.

Title IV — Law Enforcement Officers

Section 401:S.378 would direct the Attorney General to submit to the House and Senate Judiciary Committees a report on the security of assistant U.S. Attorneys and other federal attorneys arising from the prosecution of terrorists, violent criminal gangs, drug traffickers, white supremacists, and those who commit fraud and other white collar offenses.

Title V — Miscellaneous

Section 501:S.378 would permit the U.S. Sentencing Commission to enter into multi-year contracts for acquisition of goods and services, or contracts that span more than one year, to the same extent as executive agencies and to make advance, partial, progress, or other payments for property or services to the same extent as executive agencies.

Section 502:S.378 would also enable bankruptcy, magistrate, and territorial court judges to receive the same life insurance benefits that are provided to all Article III judges and Article I judges of the Court of Federal Claims.

Section 503: S.378 would amend the USC to grant a senior judge, designated and assigned to the court to which he was appointed, all the powers of a judge or justice of that court, including participation in the appointment of court officers and magistrates, rulemaking, governance, and administrative matters.

Section 504: S.378 would amend the USC to grant a senior judge, designated and assigned to the court to which he was appointed, the power to participate in the selection of magistrates.

Section 505: S.378 would reauthorize the Office of Government Ethics until 2011.

Section 506: S.378 would also decrease the number of judgeships in the Court of Appeals for the D.C. Circuit from 12 to 11 and increase the number of judgeships in the Court of Appeals for the Ninth Circuit from 28 to 29.

Legislative History

On January 24, Senator Leahy introduced S.378, the Court Security Improvement Act of 2007, and the bill was referred to the Senate Judiciary Committee. The bill has bipartisan support and eight original co-sponsors: Majority Leader Reid and Senators Collins, Cornyn, Durbin, Hatch, Kennedy, Schumer, and Specter. Senator Cardin is also a co-sponsor.

S.378 is based on S.1968, the Court Security Improvement Act of 2005, the core provisions of which passed the Senate twice in the 109th Congress but never became law.

S.378 was debated in the Judiciary Committee on March 1. An amendment offered by Senator Kyl, and co-sponsored by Senator Feinstein,to adjust the numbers of judgeships on the D.C. and Ninth Circuitswas adopted over an objection by Chairman Leahy. The committee passed the bill, as amended, by unanimous consent and ordered it to be favorably reported out of committee. The bill was reported out of committee, as amended, on March 29 with a written report and placed on the Senate Legislative Calendar.

On April 18, the Senate voted to invoke cloture on the motion to proceed to S.378.

On January 24, a nearly identical bill was introduced in the House of Representatives by House Judiciary Committee Chairman Conyers. H.R.660, the Court Security Improvement Act of 2007, shares bipartisan support and has been referred to the House Judiciary Committee, the House Committee on Ways and Means, and the House Committee on Oversight and Government Reform. The House Judiciary Committee has, however, already approved H.R.1130, the Judicial Disclosure Responsibility Act, which would extend until 2009 the JC’s power to grant other redactions in financial disclosure reports, where it is determined that the information’s release could endanger the judge or his/her family (similar to a provision in S.378). On March 21, H.R.1130 was passed in the House on a 415-0 vote. The following day, the bill was received in the Senate and referred to the Committee on Homeland Security and Governmental Affairs.

Expected Amendments

As of this writing, no amendments have been offered, or are expected to be offered, by Democrats. Senator Coburn, however, is expected to offer amendments to S.378. Summaries of those amendments will be distributed when the information is made available. A managers’ amendment, which addresses mostly technical matters, is also expected.

Statement of Administration Policy

No Statement of Administration Policy has been issued for S.378 or H.R.660. The Administration, however, has supported judicial security measures in the past, including H.R.1751, the Secure Access to Justice and Court Protection Act of 2005, introduced in the 109th Congress.

Congressional Budget Office Estimate

On March 1, the Senate Judiciary Committee requested a cost estimate from the Congressional Budget Office (CBO). On March 23, CBO estimated that S.378 wouldincrease direct spending by approximately $1 million over the 2008-2017 periods and confirmed that the bill contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act.